stating a party must make a supplemental disclosure “if the party learns 23 that in some material respect the disclosure or response is incomplete or incorrect” unless 24 “the additional or corrective information has . . . otherwise been made known to the other 25 parties during the discovery process or in writing”
How later courts described this case
- stating a party must make a supplemental disclosure “if the party learns 23 that in some material respect the disclosure or response is incomplete or incorrect” unless 24 “the additional or corrective information has . . . otherwise been made known to the other 25 parties during the discovery process or in writing”
Written by the judges who cited it.
Later courts went against this
Limited by Wixson v. Devine, 80 Cal. 385 (1889)
We have recently, in Sharon v. Sharon, 79 Cal. 633, had occasion to consider this doctrine of the law of the case, which means, as we understand it, that the court having erroneously decided some matter of law will always stand by the error in that case, though it will not allow it to be a precedent in another, and we there determined that the doctrine had nothing to commend it to the favor of the court, an
The opinion
Paterson, J., concurring.
It is manifest that so long
as the decree of the United States circuit court—the execution of which is not stayed by appeal or writ of error
{Slaughter-house Cases,
10 Wall. 273 ) — remains in force and effect, a prosecution of plaintiff’s cause of action in any proceeding in the state courts can result only in great expense and annoyance to all the parties, and a conflict of authority in which the paramount decree of the circuit court is bound to prevail. We know as well now as we shall ever know the scope and effect of the decree referred to, and the construction given to it by the federal judges in their decisions.
{Sharon
v.
Hill,
11 Saw. 290 ;
Sharon
v.
Terry,
36 Fed. Rep. 337; 131 U. S. 40 .) These decisions are official acts of the judicial department of the United States, the matters therein decided are matters of notoriety, the verity of such matters is not disputed, and we are as much bound to notice them as we are the laws of nature or the acts of the legislature. (Code Civ. Proc., sec. 1875, subd. 3;
Romero
v.
United States,
1 Wall. 742 ; “Matters requiring judicial notice.,” 28 Am. Law Reg., 2d series, 193.)
It has seemed to me, therefore, that this court ought not to now reverse the order denying a new trial in the court below; but on the ground of public policy, of comity, and to prevent vexation and expense to the parties, and an unseemly conflict between the state courts and a federal court claiming concurrent jurisdiction and a priority of right to enforce its decree, all proceedings should be stayed until -it be finally determined by the supreme court of the United States whether the prohibitory injunction of the circuit court should be made perpetual. But as a majority of the court are of opinion
*698
that this is not the proper time and place to consider the effect of the decree referred to, but that a decision should be rendered on the matters contained in the record herein without regard to the decisions of the national conrts, I feel in duty bound to support my associates in their judgment of reversal by saying that in my opinion no other conclusion could have been reached on the questions presented by the record without a violation of well-established principles of law.
Unless we are prepared to say that in actions tried without a jury the findings of the court ought not to be disturbed on account of errors in the admission and exclusion of testimony, there are two or three errors in this case which would of themselves necessitate a reversal of the order.
The main contention in the case was upon the question whether defendant and plaintiff were husband and wife,—whether there had been a consent to marry, followed by a mutual assumption of marital rights, duties, or obligations, as required by the code to constitute marriage. The testimony of Hornblower, which was excluded, was most material on this issue, and, as shown in the leading opinion, was clearly admissible. If admitted, it would have tended to show, at least, that there never was a mutual assumption of marital rights, duties, or obligations by the parties. If it be true that plaintiff expressed the intention of commencing an action against defendant for breach of promise to marry, that fact would show that plaintiff did not at that time regard herself as his wife, and there is no pretense that a marriage occurred after the time of the conversation with Hornblower. Nothing could have been more pertinent to the question the court had to determine, and being the declaration of the party against her interest, it is impossible to tell, in view of the state of the evidence, what effect it might have had on the mind of the judge if he had admitted and. considered it» Tire .evidence
*699
upon the question whether the marriage contract was genuine or not was conflicting. The evidence of Hornblower was material on that issue. The court below found that the parties to. the marriage had “lived together in the way usual with married people,” and that there had been “a mutual assumption of marital rights, duties, or obligations.” This court has found that these findings are not supported by the evidence; that they never lived together as married people usually do; and that there was no mutual assumption of marital rights, duties, or obligations.
If it be conceded that there was material evidence tending to support these findings of the court, it must he admitted that the declaration sought to he shown by the witness Hornblower—and we cannot say the court would not have believed him-—would have tended strongly to show that she had never, in good faith, assumed any marital rights, duties, or obligations. I agree that if there be a consent to marry, and any mutual marital duty performed in good faith in pursuance of the contract to marry, the marriage is complete. One act of coition is sufficient evidence of consummation; but it must be an' act performed in good faith and in pursuance of the contract by the party claiming the existence of the marriage at least, in order to consummate the marriage. It was not decided in the former decision herein that consent alone would constitute a marriage
under the laws of this state,
or that copulation was
conclusive evidence
of consummation. The only question was whether the findings supported the judgment. The contentions were, that the secrecy clause invalidated the contract, and that the finding that the defendant had never introduced plaintiff as his wife, and that they had never been reputed to be husband and wife, showed there could not have been a living together in the way usual with married people, or any mutual assumption of marital rights, duties, or obligations. The opinions rendered
*700
on the appeal from the judgment must be read in the light of the facts found in the findings of the court. I do not see how there can be any misapprehension as to what was decided on the former hearing. It was held: 1. That the contract to marry was valid, notwithstanding the stipulation as to secrecy; and 2. That the finding of a mutual assumption of marital rights, duties, and obligations was not nullified by the finding that the defendant had not introduced plaintiff as his wife, and that they were not reputed to be husband and wife. The court held—and its conclusion has- never been effectively assailed, in my opinion, by the arguments made herein, except in so far as they dealt in sentiment and were clothed in phrases which tickle the ears and please the hearts of those who do not like the law, and which would be better directed if addressed to the legislature—that, under the law of this state, when parties competent to marry enter into a contract to marry, and in pursuance" thereof perform any marital right, duty, or obligation, the marriage is consummated; and that it would not lie in the mouth of one of the parties, after he or she had enjoyed the person of the other who had performed his or her part in good faith in the consummation of the marriage, to say that the marriage was not complete because by mutual agreement it had not yet become known to their friends that they had entered into the contract and had been enjoying the same bed. As Mr. Justice McKinstry well said: “It is incredible the legislature intended that copulation may take place before the marriage is complete, or to put it in the power of the man after he has enjoyed the person of the woman to say, ‘I will proceed no further.’ Yet it is the duty of the woman after mutual consent to present marriage to live with the man, and their cohabitation must from the nature of things create the presumption of copulation, which reduces the statute to an absurdity.” The combined wisdom of all who have attacked the reasoning
*701
upon which the judgment was affirmed on the findings .has been unable, in my judgment, to offer even a plausible explanation of the “logical
felo de se”
in their construction of the statute thus pointed out by Justice McKinstry.
But the questions before us now are, whether the contract was made, and whether the
evidence
shows that there was a consummation of the marriage,—a mutual assumption of marital rights, duties, and obligations. On both of these questions the evidence of Hornblower was most material, and it was prejudicial error to exclude it.
The rulings of the court on the cross-examination of certain witnesses are as clearly erroneous. Nothing is better settled in this state than that the character of a witness cannot be impeached by evidence of particular wrongful acts.
A petition for a rehearing having been, filed, the following opinion thereon was rendered on the 20th of August, 1889:—